The will was right the day you signed it. Then life moved.
A will is read at the date of death, not the date of signing. In New South Wales, marriage can revoke a will and divorce can strike parts of it out — changes that happen by force of the Succession Act 2006 (NSW), whether or not anyone thought about the document at the time.
A will does not update itself. The family and the assets move around it, and two changes happen by force of the Succession Act 2006 (NSW) without anyone being told: marriage can revoke a will outright, and divorce can strike parts of it out.
When a will should be revisited
- Marriage, or entering a de facto relationship;
- Divorce, or a separation heading that way;
- A death or a birth — a beneficiary, an executor, a named guardian, or a grandchild you now want to provide for;
- Property or a business changing hands, especially one gifted by name;
- A beneficiary's own circumstances shifting — bankruptcy, illness, a separation.
Marriage revokes a will
Under s 12 of the Succession Act 2006 (NSW), marriage revokes a will. The exceptions in practice: a will made in contemplation of that marriage, or of marriage generally, survives — as do a disposition to the person you marry and their appointment as executor, trustee, advisory trustee or guardian. Outside those the earlier will is gone, and unless a new one is made the estate passes under the intestacy rules in Chapter 4.
Entering a de facto relationship does not revoke a will. It does change who may claim against the estate: a de facto partner can be an eligible person for a family provision claim under Chapter 3.
Divorce does not revoke the whole will
Section 13 works differently. A divorce or annulment revokes a beneficial disposition to the former spouse, their appointment as executor, trustee, advisory trustee or guardian, and a grant to them of a power of appointment. None of that applies where a contrary intention appears in the will, and the section carves out arrangements involving children of both of you. The rest of the will stands.
Two things are easy to miss. If the former spouse was the only executor named, the will may now have nobody appointed to administer it. And separation alone does nothing — what engages the section is a divorce order under the Family Law Act 1975 (Cth) taking effect, not the couple parting.
Do not write on the will. Under s 14 of the Succession Act 2006 (NSW) an alteration made after execution is not effective unless it is executed the way a will must be — signatures beside it, in the margin, can suffice. Crossing something out is unpredictable rather than harmless: an obliteration leaving the original words no longer apparent can operate on its own terms, and s 8 gives the Court a limited dispensing power over informal alterations. Both get argued after your death, at the estate's cost.
Codicil, or a new will
A codicil amends an existing will. It is itself a will under the Act, so it must be signed and witnessed with the same s 6 formalities — it saves drafting, not formality.
- A codicil suits one small, self-contained change: a substitute executor, a corrected name, a single legacy added or removed.
- A new will suits everything else. Two documents read together create a construction question, and a codicil can go missing while the will survives.
A new will should expressly revoke all earlier wills and codicils, and the superseded original be dealt with deliberately rather than left in circulation.
Property, businesses and the residue
Gift a named property, sell it, and the gift will usually adeem: it fails, and the beneficiary takes nothing in its place. One narrow exception is a sale by an attorney under an enduring power of attorney, where s 22 of the Powers of Attorney Act 2003 (NSW) gives the named beneficiary the same interest in the surplus proceeds. Sell a business and shares named in the will fall into the residue as cash, handing a different beneficiary a larger share than you intended.
What a review involves
We go through your assets, liabilities and family structure as they are now rather than as the will assumes, and identify what has changed by operation of law. If a codicil is enough, we say so. If the will should be replaced, we say that instead. An online or telephone will kit is a poor way to make the change: those are easily invalidated by a failure to meet the legal requirements. We store the signed original at no charge, give you a copy, and confirm in writing where it is held.
Questions about updating a will.
Does getting married cancel my will?
In New South Wales, generally yes. Section 12 of the Succession Act 2006 (NSW) revokes a will on the marriage of the will-maker, subject to exceptions: a will made in contemplation of that marriage or of marriage generally, a disposition to the person married, and their appointment as executor, trustee, advisory trustee or guardian. Outside those the earlier will no longer operates, and the estate passes on intestacy unless a new will is made.
I am divorced. Is my old will still valid?
The will itself survives. Section 13 of the Succession Act 2006 (NSW) revokes a gift to the former spouse, their appointment as executor, trustee, advisory trustee or guardian, and a power of appointment granted to them — unless a contrary intention appears in the will, and subject to carve-outs where children of both of you are involved. The practical risk is a will left with no executor. Separation without a divorce order changes nothing.
Can I just cross out a name and initial the change?
It is not a safe way to change anything. Under s 14 of the Succession Act 2006 (NSW) an alteration made after execution is not effective unless it is executed with a will's formalities. Nor is it simply ignored: an obliteration that leaves the original words no longer apparent can operate, and s 8 gives the Court a limited dispensing power. Which of those applies gets argued after your death. Use a codicil or a new will.
Codicil or a new will — which one?
A codicil suits a single self-contained change, such as naming a substitute executor. It is itself a will under the Act, so it must be signed and witnessed exactly like one — it saves drafting rather than formality. Where there is more than one change, or a change affects the residue, a fresh will that expressly revokes the earlier one is usually cleaner and less open to argument.
How often should a will be reviewed?
There is no statutory interval. The sensible trigger is an event rather than a date: a marriage, a divorce, a death, a birth, a property bought or sold, a business changing hands, or a beneficiary whose circumstances have materially changed. If none of those has happened, a periodic read-through is still worth doing to confirm the will matches what you now own.
Tell us what's happened.
Tell us when the will was signed and what has changed since. We'll set out what a review would involve, whether a codicil or a fresh will is the likely answer, and what it would cost.
Information on this site is general in nature and is not legal advice, and may have been overtaken by a change in the law. Contacting us does not create a solicitor–client relationship.